Case T-388/03

Deutsche Post AG and DHL International

v

Commission of the European Communities

(State aid – Decision not to raise objections – Action for annulment – Standing to bring proceedings – Admissibility – Serious difficulties)

Summary of the Judgment

1.      Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Commission decision finding State aid compatible with the common market without opening the formal investigation procedure – Action by interested parties for the purposes of Article 88(2) EC

(Arts 88(2) and (3) EC and 230, fourth para., EC)

2.      Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Action admissible – Right to rely on all the grounds of inadmissibility set out in Article 230, second paragraph, EC

(Arts 88(2) and (3) EC and 230, second para., EC)

3.      State aid – Planned aid – Examination by the Commission – Preliminary review and main review – Compatibility of the aid with the common market

(Art. 88(2) and (3) EC)

4.      Preliminary rulings – Interpretation – Temporal effects of judgments by way of interpretation – Retroactive effect – Limits – Legal certainty

(Arts 87(1) EC and 234 EC)

1.      Where, without initiating the formal investigation procedure under Article 88(2) EC, the Commission finds, on the basis of Article 88(3) EC, that aid is compatible with the common market, the persons intended to benefit from those procedural guarantees may secure compliance therewith only if they are able to challenge that decision before the Community judicature.

For those reasons, an action for the annulment of such a decision brought by a person who is concerned within the meaning of Article 88(2) EC is admissible where he seeks, by instituting proceedings, to safeguard the procedural rights available to him under the latter provision.

On the other hand, if the applicant challenges the substance of the decision appraising the aid as such, the mere fact that it may be regarded as concerned within the meaning of Article 88(2) EC cannot suffice to render the action admissible. The applicant must then demonstrate that it has a particular status within the meaning of Case 25/62 Plaumann v Commission [1963]. That would apply in particular where the applicant’s market position is substantially affected by the aid to which the decision at issue relates.

The mere fact that the decision in question may exercise an influence on the competitive relationships existing on the relevant market and that the undertakings concerned are in a competitive relationship with the beneficiary of that decision does not constitute a significant effect.

(see paras 42, 44, 48)

2.      When an applicant seeks to safeguard his procedural rights pursuant to Article 88(2) EC, he may rely on any of the grounds set out in the second paragraph of Article 230 EC, provided that they are directed at the annulment of the contested decision and, in any event, the initiation by the Commission of the procedure referred to in Article 88(2) EC. On the other hand, it is not for the Court of First Instance to rule at that stage of the Commission’s procedure for examination of aid on whether aid exists or whether it is compatible with the common market.

Pleas aimed at obtaining a ruling from the Court of First Instance on the existence of State aid or on its compatibility with the common market must consequently be rejected as inadmissible. On the other hand, all pleas which seek to establish that the Commission should have initiated the formal investigation procedure provided for in Article 88(2) are admissible.

(see paras 66-67)

3.      The formal investigation procedure under Article 88(2) EC is obligatory if the Commission experiences serious difficulties in establishing whether or not aid is compatible with the common market. The notion of serious difficulties is an objective one. Whether or not such difficulties exist requires investigation of both the circumstances under which the contested measure was adopted and its content. That investigation must be conducted objectively, comparing the grounds of the decision with the information available to the Commission when it took a decision on the compatibility of the disputed aid with the common market. The fact that the time spent considerably exceeded the time usually required for a preliminary examination under Article 88(3) EC may thus, with other factors, justify the conclusion that the Commission encountered serious difficulties of assessment necessitating initiation of the procedure under Article 88(2) EC. Likewise, if the examination carried out by the Commission during the preliminary examination procedure is insufficient or incomplete, this constitutes evidence of the existence of serious difficulties.

(see paras 88, 92, 94-95)

4.      An interpretation which the Court of Justice gives of a provision of Community law is limited to clarifying and defining the meaning and scope of that provision as it ought to have been understood and applied from the time of its entry into force. It follows that the provision as thus interpreted may, and must, be applied even to legal relationships which arose and were established before the judgment in question and it is only exceptionally that, in application of a general principle of legal certainty which is inherent in the Community legal order, the Court may decide to restrict the right to rely upon a provision, which it has interpreted, with a view to calling into question legal relationships established in good faith. Such a restriction can be allowed only in the actual judgment ruling upon the interpretation sought. Those considerations, which derive from case‑law dealing, in particular, with the national courts’ duty to apply Community law, apply mutatis mutandis to the Community institutions when they, in turn, are required to implement the provisions of Community law which are subsequently interpreted by the Court.

It follows that, since the Court did not place any temporal limitation on the scope of its judgment in Case 280/00 Altmark [2003], the criteria for the interpretation of Article 87(1) EC are fully applicable to the factual and legal situation as it presented itself to the Commission when it adopted its decision prior to the delivery of that judgment.

Consequently, a decision of the Commission not to open the formal investigation procedure provided for in Article 88(2) EC which was taken without an examination enabling it to determine whether the level of compensation paid to the public undertaking was fixed on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with the necessary means so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, must be annulled.

(see paras 112-114, 119)